On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-434-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Grall, Messano and LeWinn.

Defendant Montclair Developers, LLC (Montclair), a general contractor, engaged plaintiff, Seashore Framing, LLC (Seashore), a construction company, as a subcontractor in the development of a community of townhouses. Numerous problems arose during the project, leading ultimately to litigation. Seashore now appeals from the March 19, 2009 order of the trial judge, entered following a non-jury trial, dismissing its complaint against Montclair for $72,205 allegedly due pursuant to an agreement between the parties.*fn1 We affirm.

The evidence adduced at trial may be summarized as follows. Seashore submitted a one-page proposal to Montclair for the completion of [f]raming to include rough frame, sheathing, install windows and exterior doors, set [L]ally columns*fn2 , sub-facia, install stairs and block-out for dry[]wall where applicable and as required[,] . . . [and] basement framing all units . . . .

Payment was to be "50% on rough frame, 20% on sheathing, 20% on window installation, and 10% on block-out." The proposal did not specify either the time within which plaintiff's work was to be completed or which set of plans would be used for the project.

The proposal was approved by Montclair on February 21, 2006, and Seashore commenced work on the project shortly thereafter. Seashore hired subcontractors for all four phases of the proposed work. During the first week of construction, Brian Sullivan, a supervisor at Seashore, was on the work site daily. Upon his arrival, he discovered problems with the foundation laid by the masonry subcontractor. Sullivan discussed these problems with Tom May, Montclair's project manager, who instructed him to have Seashore proceed with its work and make adjustments as it went along. May acknowledged that the foundation was "built crooked, out of level, out of square[,]" and the floor trusses had to be adjusted.

William Sepe, a principal of Seashore, testified as to other problems; for example, the roof trusses provided by Montclair "were manufactured incorrectly[,]" and after installing them, Seashore had to "[p]ut them back down and then manufacture [its] own trusses in the field to make them work . . . ." Sepe stated that he advised Glen Zeek, Montclair's site manager, about these developments, and Zeek told him to "get a proposal over to the office and to make sure [Seashore was] keeping track of all the extra work . . . ."

Sepe testified that the first time Montclair expressed any dissatisfaction with Seashore's work was on May 19, 2006, when he met with Charles DiVine, Montclair's vice president of construction. During a site visit on that date, DiVine instructed Sepe to "rip th[e] roof off and make it perfect[,]" and threatened to terminate Seashore if it failed to comply. As a result of that meeting, Sepe created a "punch list" of items in need of completion.

To redo the roof, Seashore assembled twenty-two men, which was, according to Sepe, "three times as much as . . . should have been there." During Seashore's final week on the worksite, Sepe was on vacation, but Sullivan went through the site with Zeek and reviewed Sepe's punch list. Sullivan testified that all but a few items on the list were completed, and claimed that Seashore had no control over these items because Montclair had not provided the necessary materials.

Montclair officially terminated Seashore by letter dated June 2, 2006; the letter stated that the "workmanship thusfar [sic] has been inferior and there is no point to continue this business relationship." On that same date, Scott Roth, an architect retained by Montclair, sent the contractor a report describing his observations of the worksite as of May 9, 2006; Roth stated that there were "[n]oticeable 'excessive' gaps in the exterior sheeting[,] . . . [and] some bad sheets of plywood on the sub floor creating an uneven surface."

On June 27, 2006, Seashore sent Montclair a packet of twenty-eight invoices for work performed between April 26 and June 19, 2006, reflecting an outstanding balance of $72,205. Some of the invoices sought payment for "extra" work beyond the scope of the proposal, which Seashore claimed had been necessitated by problems beyond its control, such as the improperly poured foundation and the need to repair the trusses provided by Montclair.

On July 25, 2006, Montclair notified Seashore by letter that it would not pay any of the outstanding invoices. The letter stated that Seashore had failed to provide enough manpower on the job, did not supervise its workers, produced "sloppy and inconsistent[,] incorrect work[,]" and did not perform its job "in accordance with the plans." Montclair further asserted that Seashore "had not finished the buildings nor . . . corrected any of the multitude of deficient items" on the punch list.

Montclair enclosed a copy of Sepe's punch list with its own markings indicating which items had not been completed; also enclosed were Seashore's invoices with Montclair's comments explaining why it would not pay them. Finally, Montclair enclosed a bill to Seashore for $29,000 in expenses it had allegedly incurred to remove and repair much of the work.

Seashore responded to Montclair's letter by filing its complaint on July 28, 2006. The complaint sought payment of $36,000 due on the contract plus $58,165 in "[a]greed upon extras[,]" less $21,960 in payments received, for a balance due of $72,205. Montclair filed its answer and third-party complaint on September 11, 2006, claiming breach of contract for failure "to perform in a good workmanlike manner[,]" and negligence.

Sepe, Sullivan and May testified on behalf of Seashore, which also sought to admit Zeek's deposition into evidence; the trial judge denied this request on the basis that Seashore had failed to show that Zeek was unavailable to testify. Seashore was permitted to introduce the deposition testimony of David Currais, an employee of Do-Val, the framing contractor Montclair hired to complete the work after Seashore was terminated. Currais opined that Seashore's work was not inferior and that some of Do-Val's work was done to accommodate design changes, and not just to repair Seashore's work.

DiVine testified on behalf of Montclair as both a fact and expert witness. He described specific deficiencies in the work, such as improperly installed fascia, improper construction of kitchen walls, incorrect room sizes and framing and setting of fireplaces, and improper spacing of interior door frames and windows.

At the close of the evidence, Seashore moved to amend its complaint to allege wrongful termination. The judge denied the motion as moot, explaining:

[A]s you have gone forward with your evidence . . . your claim is based on [an] assertion that you were unlawfully terminated. So it's already in the case.

There is no basis for any amendment and there is no basis for adding anything extra that you contend was done by [Do-Val] for which [Seashore] should have been paid because what you pray in the complaint is already what your client alleges was due to him.

On March 6, 2009, the trial judge rendered her decision from the bench. The judge found plaintiff's June 27, 2006 invoices to be inadequate because they were made "after the fact, obviously based on hearsay from supervisors on the site[,]" and "did not have dates for the work that was supposed to be done, who did the work[ and] no real specifics." The judge found further that, after the May 19, 2006 meeting between Sepe and DiVine, Seashore failed to remedy the issues raised by Montclair.

The judge concluded that the "evidence is pretty much equal in balance[,]" adding that plaintiff's own punch list supports the defendant['s] . . . claim that work was not done as contracted between the parties.

The contract is not helpful . . . to support the plaintiff's claims regarding the extras because the contract . . . did not spell out with any specificity what was to be done, what was not to be done and . . . the plaintiff did not reserve any rights in that contract to make a claim regarding extras or options.

Although obviously this court would not permit the defendant . . . to be unjustly enriched if the plaintiff were able to prove by the requisite preponderance of the credible evidence that extras were really extras and that they had been done and done in a workmanlike manner so that the plaintiff would be entitled to compensation.

The contract . . . does not help the defendant . . . nor . . . the plaintiff as it relates to the extras . . . because it is so vague and non[-]specific.

[T]he court is not able to find from the evidence that either party is entitled to more than [that] for which they have been compensated or for more than the value of the work that was done . . . .

On appeal, Seashore contends that the trial judge erred in (1) declining to admit Zeek's deposition testimony; (2) denying its motion to amend the complaint to add a wrongful termination count and failing to make a determination that Montclair acted in bad faith; and (3) making erroneous findings of fact. We disagree and, having reviewed the record in light of these contentions and the controlling legal principles, we are convinced they are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

Regarding Zeek's deposition testimony, Seashore makes no claim that the witness was unavailable to testify at trial. Thus, Seashore was precluded from introducing Zeek's deposition because it failed to satisfy the threshold showing required by Rule 4:16-1(c) that "the witness cannot be obtained because of death or other inability to attend or testify, . . . or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena . . . ." See Alves v. Rosenberg, 400 N.J. Super. 553, 561 (App. Div. 2008) (deposition testimony "may be used . . . where the deponent is 'unavailable'").

Nor did Zeek come within the purview of Rule 4:16-1(b), as plaintiff contends. That rule provides:

The deposition of . . . any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R.4:14-2(c) or R.4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency. [(Emphasis added).]

It is undisputed that Zeek was not employed by Montclair at the time of his deposition. As Seashore acknowledges, "shortly after the termination of Seashore [in June 2006], . . . Zeek . . . w[as] fired." Therefore, this rule affords plaintiff no relief.

Seashore's next contention is that the trial judge erred in denying its application to amend the complaint to add a wrongful termination claim. Suffice it to say, in its motion to amend Seashore sought no damages beyond those claimed in its original complaint, namely payment of the full contract price plus extras. We concur with the trial judge's reasoning that Seashore's proposed additional claim was "already in the case[,]" and that there was "no basis for . . . adding anything extra . . . ." As the judge noted, it was Seashore's "premise . . . from day one that [Montclair] terminated [it] wrongfully." The judge ultimately rejected this claim in finding against Seashore at the conclusion of trial.

The trial judge properly rejected plaintiff's contention that Montclair had acted in bad faith. Such a claim required proof that Montclair had acted "arbitrarily, unreasonably, or capriciously, with the objective of preventing [Seashore] from receiving its reasonably expected fruits under the contract." Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001). Absent such evidence, Seashore's claim of "bad faith or unfair dealing" was "advanced in the abstract[,]" ibid., and, therefore, was correctly excluded as a separate cause of action.

Finally we address Seashore's claim that the judge made numerous erroneous findings of fact. Our scope of review of this claim is limited.

Considering . . . the scope of our appellate review of judgment entered in a non-jury case, as here, we . . . have held that the findings on which it is based should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice," and that the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter.

We must consider a trial judge's factual findings "binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484.

Where, as here, those findings are substantially based upon credibility determinations, our review is even more circumscribed. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

After considering defendant's objections in light of the record and our limited scope of review, we are satisfied that the judgment is "based on findings of fact which are adequately supported by the record." R. 2:11-3(e)(1)(A). See Rova Farms, supra, 65 N.J. at 484. We therefore defer to those findings.

Affirmed.

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